United States District Court, Northern District of Illinois, E.D
November 29, 1983
MARIO'S BUTCHER SHOP AND FOOD CENTER, INC., AN ILLINOIS CORPORATION; AND MARIO LETTIERI, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
ARMOUR AND COMPANY, AN ARIZONA CORPORATION, WORTHINGTON PACKING COMPANY, AN OHIO CORPORATION, AND SWIFT INDEPENDENT PACKING COMPANY, A DELAWARE CORPORATION, INDIVIDUALLY AND AGAINST ALL PERSONS SIMILARLY SITUATED, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
The plaintiffs brought the instant case in the Circuit Court
of Cook County against Armour, Worthington, and Swift alleging
that the defendants packaged and sold hog intestines as pork
chitterlings, which plaintiffs purchased, in containers which
were labeled as containing ten pounds of meat but which, in
fact, contained a lesser quantity of meat. The two-count
complaint charges that in so doing, defendants have violated
the Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat.
ch. 121 1/2, ¶ 261 et seq. (1981), and the Uniform Deceptive
Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 311, et seq.
(1981). The cause was removed to this Court by defendants.
28 U.S.C. § 1441. Presently before the Court is the defendants'
Motion to Dismiss for failure to state a claim. For the reasons
stated herein, the Motion to Dismiss is denied.
Jurisdiction over the instant matter is properly based on
diversity of citizenship between the parties. 28 U.S.C. § 1332.
The amount in controversy exceeds the jurisdictional minimum.
In their Motion to Dismiss, defendants contend that the
state statutes under which plaintiff has sued cannot be
applied to the case at bar since federal law has preempted the
field of the regulation of meat in the Federal Meat Inspection
Act as amended by the Wholesome Meat Act (hereinafter referred
to as "the Act"). 21 U.S.C. § 601 et seq. Further, defendant
contends that even if plaintiffs sought to pursue the instant
matter under federal law, it would be powerless to do so as no
private right of action exists under the Act.
It is the considered opinion of this Court that defendant is
correct in its assertion that no private right of action
exists under the Act. However, for the reasons set out herein,
plaintiff may bring suit under the Consumer Fraud and
Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 261 et
seq. (1981) and the Uniform Deceptive Trade Practices Act,
Ill.Rev.Stat. ch. 121 1/2, ¶ 311 et seq. (1981). In so doing,
however, the standards which shall be applied are those set out
by federal law.
I. The Private Right of Action
It is plainly the law of this Circuit that no private right
of action exists under the Act. In Pacific Trading Company v.
Wilson & Co., Inc., 547 F.2d 367 (7th Cir. 1976), the Seventh
Circuit upheld the district court in concluding that no private
right of action exists under federal law in this area. The
Court based its conclusion on the rationale set out by District
Judge Lynch whose opinion was appended to the Seventh Circuit's
decision. According to Judge Lynch,
The Federal Meat Inspection Act has as its stated
purpose, the enforcement of standards throughout
meat packing plants. Cudahy Packing Co. v. McBride,
92 F.2d 737 (8th Cir. 1937). Toward this end
Congress has vested the Secretary of Agriculture
with powers of inspection. Brougham v. Blanton Mfg.
Co., 249 U.S. 495, 39 S.Ct. 363, 63 L.Ed. 725
In the instant case plaintiffs, as private
individuals, have brought suit for money damages.
This Act makes no such provision for suits by
private individuals. In addition, 21 U.S.C. § 676
provides for imprisonment and fine but not
for the award of civil damages . . .
The statutes under which the plaintiffs have
brought this suit are regulatory in character and
Congress has vested the power to enforce this
in the government, not private individuals.
547 F.2d 367
, 370 app. (7th Cir. 1976).
From the foregoing there can be no dispute that plaintiffs
could not have brought the instant suit under the Act. They
are not, however, without remedy as the instant suit could be,
and indeed was, properly brought under state law.
II. Federal Preemption of the Field
While the state laws sued under create general causes of
action for fraud and deception, the federal and state statutes
here under consideration are quite explicit in explaining the
effect of conflicting or additional authority. According to
Section 678 of the Act,
Requirements within the scope of this chapter
with respect to premises, facilities and
operations of any establishment at which
inspection is provided under subchapter I of this
chapter, which are in addition to or different than
those made under this chapter may not be imposed by
any State or Territory of the District of
Columbia . . . Marking, labeling, packaging, or
ingredient requirements in addition to or different
than those made under this chapter may not be
imposed by any State or Territory or the District
of Columbia with respect to articles prepared at
any establishment under inspection in accordance
with the requirements under subchapter I of this
chapter . . . This chapter shall not preclude any
State or Territory or the District of Columbia from
making requirement [sic] or taking other action,
consistent with this chapter, with respect to any
other matters regulated under this chapter.
21 U.S.C. § 678.
Similarly, Section 270b(1) of the Consumer Fraud and
Deceptive Practices Act specifically excludes from liability
under that act "actions or transactions specifically
authorized by laws administered by any regulatory body or
offices acting under statutory authority of this State or the
United States." Ill.Rev.Stat. ch. 121 1/2, ¶ 270b(1) (1981).
Likewise, the Illinois Uniform Deceptive Trade Practices Act
first describes conduct considered to be a deceptive trade
practice, then qualifies the statute with a caveat that the act
does not apply to "(1) conduct in compliance with the orders or
rules of or a statute administered by a Federal, State or local
governmental agency . . ." Ill.Rev.Stat. ch. 121 1/2, ¶ 314(1)
Finally, the State of Illinois, recognizing the need for
uniformity in the field, specifically deferred to the federal
authorities in establishing regulations for the inspection of
meat processing establishments such as those which produced
the chitterlings the weight of which is here at issue. Section
6 of the Illinois Meat and Poultry Act provides:
Recognition of Federal Inspection. The provisions
of this Act shall not apply to establishments,
which operate subject to the Federal Meat
Inspection Act of March 4, 1907, as amended . . .
Ill.Rev.Stat. ch. 56 1/2, ¶ 306 (1981).
Viewed together, the above provisions reveal that a state is
clearly authorized to enact laws aimed at protecting the
health and well being of its citizenry, but that such laws may
not impose different or additional affirmative requirements
upon the product. Further, in Illinois, it is clear that
compliance with federal rules and regulations in this regard
shall be deemed sufficient compliance with state law. Such
compliance is therefore a valid defense to complaints brought
under the various statutes discussed herein.
The Court's reading of the law is supported by case law. In
Jones v. Rath Packing Company, 430 U.S. 519, 97 S.Ct. 1305, 51
L.Ed.2d 604 (1977), the Supreme Court struck down a California
regulatory scheme which used a statistical sampling process to
determine the average net weight of a quantity of bacon that
failed to allow for the loss of weight resulting from moisture
loss during distribution. The California statute was at odds
with federal regulations which specifically do take moisture
loss into account in prescribing allowable
weighing procedures. The state statute was therefore "in
addition to or different than" the federal requirements and
thus impermissible. 21 U.S.C. § 678.
In Rath, minimum compliance with federal law would have
resulted in noncompliance with the California provision since
the California provision imposed regulatory burdens on the
product in excess of the federal statute. By contrast, in the
case at bar, there is no contention that minimum compliance
with federal weighing regulations could nevertheless result in
defendants' noncompliance with state law; indeed the opposite
is true as the applicable statutes specify that no liability
may be found where the product complies with federal
regulations. See also, Chicago-Midwest Meat Association v. City
of Evanston, 589 F.2d 278 (7th Cir. 1978) (municipal ordinance
upheld providing for inspection of vehicles delivering
federally inspected meat); American Meat Institute v. Ball,
520 F. Supp. 929 (W.D.Mich. 1981) (summary judgment denied on
whether Michigan could enact requirement of placard containing
specified information at point of sale).
Clearly, in light of the foregoing, the instant case may
properly be brought under state law. The only question
remaining is whether, under the requirements of notice
pleading, plaintiffs have stated a claim upon which relief can
The state statutes here sued under are general provisions
creating a cause of action for unfair competition or unfair or
deceptive acts or practices, Ill.Rev.Stat. ch. 121 1/2, ¶ 262
(1981), and for deceptive trade practices. Ill.Rev.Stat. ch.,
121 1/2, ¶ 312 (1981). However, since these statutes provide
for incorporation of federal regulations and standards, such
standards must be considered in determining whether the instant
complaint sets out a claim.
The applicable implementing regulations may be found at
9 C.F.R. § 301 et seq. Of greatest importance in the case at bar
is 9 C.F.R. § 317.2(b) which sets forth the requirements for
quantity declarations. The complaint in the case at bar makes
no mention of those regulations or of how defendants failed to
comply therewith. Indeed, the complaint fails to even set out
the exact variance between the actual and the stated weights of
the chitterlings. It may be that the claimed variance is within
federal limits, thus necessitating judgment on the pleadings or
summary judgment for defendants; however, in the absence of a
recitation of the actual claimed weight of the chitterlings,
such a determination could never be made. In short, without an
allegation of the actual variance between the actual weight and
the claimed weight, it would be impossible to determine whether
federal law has been complied with and thus whether a claim has
been stated under the provisions of the Consumer Fraud and
Deceptive Practices Act or the Uniform Deceptive Trade
For the reasons stated herein, the Court holds that no
private right of action exists under the Federal Meat
Inspection Act as amended by the Wholesome Meat Act, 21 U.S.C. § 601
et seq., but that the standards and regulations enacted
therein may properly be applied to a lawsuit brought under
Illinois law as enacted in the Consumer Fraud and Deceptive
Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 261 et seq. (1981)
and the Uniform Deceptive Trade Practices Act. Ill.Rev.Stat.
ch. 121 1/2, ¶ 311 et seq. (1981). Because plaintiffs'
complaint is wholly devoid of allegations concerning
noncompliance with the federal standards including specific
statements regarding the variance between the claimed weight
and the actual weight as computed under the federal
regulations, plaintiffs' complaint is hereby dismissed without
prejudice with leave given to amend such complaint within 30
days of this order.
IT IS SO ORDERED.
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